When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 57(3). Article 57 was adopted by 90 votes in favour, none against and 4 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 211.

When the military advantage to be gained leaves the choice open between several objectives, [the person responsible for ordering or launching an attack] is required to select the one, an attack on which involves least danger for the civilian population.

Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 8(a).

Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia

Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.

Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.

Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina

Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.

Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.5.

Objects and axes of attack should be chosen to minimise collateral damage wherever possible. Where a similar military advantage may be gained by attacking any one of several military objectives, the attack should be made against the objective which is likely to cause the least collateral damage. The same principle applies to choosing axes of advance or attack where more than one practicable and reasonable axis is available.

Objects and axes of attack should be chosen to minimise collateral damage wherever possible. Where a similar military advantage may be gained by attacking any one of several military objectives, the attack should be made against the objective that is likely to cause the least collateral damage. The same principle applies to choosing axes of advance or attack where more than one practicable and reasonable axis is available.

Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.57.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).

Benin

Benin’s Military Manual (1995) states: “The military commander must choose the solution that represents the least danger for civilians and civilian objects.”

Burundi’s Regulations on International Humanitarian Law (2007) states: “When a choice is possible between several military objectives, the objective or tactic must be chosen which poses the least danger to civilians and civilian objects.”

The proportionality test must be used in the selection of any target. Proportionality and multiple targets: Where a choice is possible between several legitimate targets for obtaining a similar military advantage, the target to be selected shall be the one on which an attack would be expected to cause the least civilian casualties and damage to civilian objects.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-3, §§ 18 and 19; see also p. 7-5, § 49 (air to land operations).

Canada

Canada’s LOAC Manual (2001) states in its chapter on targeting:

414. Proportionality and multiple targets

1. Where a choice is possible between several legitimate targets for obtaining a similar military advantage, the target to be selected shall be the one on which an attack would be expected to cause the least civilian casualties and damage to civilian objects.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 414.1.

In its chapter on air warfare, the manual states:

When a choice is possible between several legitimate targets for obtaining a similar military advantage, the target to be selected shall be the one where the attack may be expected to cause the least danger to civilian lives and to civilian objects.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 716.5.

Côte d’Ivoire

Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):

When a choice is possible between several legitimate military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

Before engaging an objective, every responsible military leader shall, when a choice is possible between several military objectives of equal importance, engage that objective the attack on which may be expected to cause the least incidental injury or damage.

When a choice is possible between several military objectives for attaining a similar military advantage, the objective to be selected shall be that objective, the attack on which would cause the least danger to civilian persons and objects.

Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 4, p. 8.

Madagascar

Madagascar’s Military Manual (1994) states: “The military commander must choose the solution which will cause the least civilian losses and damage to civilian objects.”

In this respect, the manual specifies that: “Among tactically equivalent alternatives, the direction, objective, aim and target of an attack must be chosen in order to cause the least civilian damage possible.”

The Military Manual (1993) of the Netherlands states: “When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.”

When a choice is possible between various military objectives, to attain equal military advantage, the objective chosen should be that where the attack can be expected to pose least danger to the lives of the civilian population and civilian objects.

In its chapter on non-international armed conflict, the manual states: “Where operational choices exist, they [participants in an internal armed conflict] should select the target which poses the least danger to civilian lives and civilian objects.”

When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

Nigeria’s Military Manual (1994) provides: “Where there is a choice as to which of the general targets can be attacked, the objective to be selected shall be that which would cause the least danger to civilian persons and objects.”

Peru’s IHL Manual (2004) states: “Where there is a choice between a number of military objectives and they offer a similar military advantage, the one that is likely to cause the least danger to the civilian population and civilian property should be chosen.”

Peru’s IHL and Human Rights Manual (2010) states: “Where there is a choice between a number of military objectives and they offer a similar military advantage, the one that, if attacked, is likely to cause the least danger to the civilian population and civilian property should be chosen.”

When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

Spain’s LOAC Manual (2007) states that “when a choice is possible between several military objectives for obtaining a similar military advantage, the objective expected to cause the least danger to civilian lives and civilian objects must be chosen”.

In certain circumstances it is possible to reduce the risk to the civilian population and to civilian property if the military commander selects a different objective, from which he can achieve about the same military advantage as from the prime objective. In many situations, however, it is impossible to denote an alternative objective, for which reason the rule concerning second-line objectives has been given the reservation mentioned by way of introduction: “when a choice is possible”.

Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.2.1.5, p. 72.

Togo

Togo’s Military Manual (1996) states: “The military commander must choose the solution that represents the least danger for civilians and civilian objects.”

When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.

Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 2.4.2.

United Kingdom of Great Britain and Northern Ireland

The UK LOAC Manual (2004) states: “Where there is a choice between different military objectives whose attack will yield the same military advantage, the one whose attack is expected to cause the least incidental damage should be chosen.”

United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.32.

United States of America

The US Air Force Pamphlet (1976) states: “When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that which may be expected to cause the least danger to civilian lives and to civilian objects.”

United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-3(c)(1)(c).

Yugoslavia, Socialist Federal Republic of

The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides that if there is a choice between several military objectives for obtaining the same military advantage, military commanders must select the one which represents the least potential risk for the civilian population, “provided this does not particularly increase the danger to members of the armed forces undertaking the attack”.

Denmark’s Military Criminal Code (1973), as amended in 1978, provides:

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].

Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).

Denmark’s Military Criminal Code (2005) provides:

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].

Denmark, Military Criminal Code, 2005, § 36(2).

Ireland

Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 57(3), is a punishable offence.

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.

In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:

The precautionary principle is the cornerstone of a number of specific rules which are all considered to have attained customary status and to be applicable in internal armed conflicts … Among these rules is … the obligation to select the objective of an attack which may be expected to cause the least danger to civilian lives and to civilian objects when a choice is possible between several military objectives for obtaining a similar military advantage.

In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court referred to norms of IHL relevant to the case under review, including Article 57(3) of the 1977 Additional Protocol I.

On the basis of an interview with a senior officer of the armed forces, the Report on the Practice of Indonesia states that the Indonesian armed forces normally observe the precautions listed in Article 57 of the 1977 Additional Protocol I.

Report on the Practice of Indonesia, 1997, Interview with a senior officer of the Indonesian armed forces, Chapter 1.6.

Islamic Republic of Iran

The Report on the Practice of the Islamic Republic of Iran states, with reference to the Iran–Iraq War: “Iran claimed that targets … [were] chosen in a way that the least casualties to civilians would be inflicted. In Iran’s view, low damage for Iraqi civilians was the proof this claim.”

Report on the Practice of the Islamic Republic of Iran, 1997, Chapter 1.6.

Israel

The Report on the Practice of Israel states: “In principle, when a choice is possible between several military objectives for obtaining a similar military advantage, the IDF [Israel Defense Forces] will select the military target representing the least potential risk for the civilian population.”

Report on the Practice of Israel, 1997, Answers to additional questions on Chapter 1.6.

Jordan

The Report on the Practice of Jordan notes that a booklet on the law of armed conflict prepared by the ICRC is used by military commanders. The booklet refers to the obligation to choose a target in the light of the obligation to minimize damage to civilians or civilian objects.

Report on the Practice of Jordan, 1997, Chapter 1.6.

Malaysia

According to the Report on the Practice of Malaysia, the obligation to select, if a choice is available, the target representing the least potential risk for the civilian population forms part of Malaysian practice.

Report on the Practice of Malaysia, 1997, Answers to additional questions on Chapter 1.6.

Netherlands

According to the Government of the Netherlands, commanders have to take all the precautionary measures required by Article 57 of the 1977 Additional Protocol I when carrying out an attack.

The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 57 of the 1977 Additional Protocol I to be part of customary international law.

Report on the Practice of the Syrian Arab Republic, 1997, Chapter 1.6.

United States of America

On 16 April 1986, in the context of US attacks on Libyan targets, the US President stated that “these targets were carefully chosen, both for their direct linkage to Libyan support of terrorist activities and for the purpose of minimizing collateral damage and injury to innocent civilians”.

United States, Identical letters dated 16 April 1986 from the US President to the Speaker of the House and the President of the Senate concerning US airstrikes against Libya on 14 April 1986, reprinted in Marian Nash (Leich), Cumulative Digest of United States Practice in International Law, 1981–1988, Department of State Publication 10120, Washington, D.C., 1993–1995, p. 3405.

United States of America

In 1991, in response to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army stated:

The language of Article 57(3) of [the 1977 Additional] Protocol I … is not part of customary law. The provision applies “when a choice is possible …;” it is not mandatory. An attacker may comply with it if it is possible to do so, subject to mission accomplishment and allowable risk, or he may determine that it is impossible to make such a determination.

United States, Message from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf, 11 January 1991, § 8(H), Report on US Practice, 1997, Chapter 1.6.

Zimbabwe

The Report on the Practice of Zimbabwe states that the provisions of Article 57 of the 1977 Additional Protocol I would be regarded as customary by Zimbabwe because of its adoption of the Geneva Conventions Amendment Act, which incorporates the 1977 Additional Protocol I into Zimbabwe’s law and practice.

In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated that Article 57 of the 1977 Additional Protocol I was now part of customary international law, not only because it specified and fleshed out general pre-existing norms, but also because it did not appear to be contested by any State, including those who had not ratified the Protocol.

ICTY, Kupreškićcase, Judgment, 14 January 2000, § 524.

With reference to the Martens Clause, the Trial Chamber held:

The prescriptions of … [Article 57 of the 1977 Additional Protocol I] (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians.

To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:

When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which would cause the least danger to civilian persons and objects.

…

To reduce civilian casualties and damage, equivalent alternative objectives and targets shall be selected whenever the mission given permits.

Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, §§ 429 and 456.

ICRC

In an appeal issued in October 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of, inter alia, Article 50(3) of the draft Additional Protocol I, which stated: “When a choice is possible between several objectives, for obtaining a similar military advantage, the objective to be selected shall be that which will occasion the least danger to civilian lives and to civilian objects.” All the governments concerned replied favourably.